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Today’s Tip for Commercial Litigators: Jurors Observe Lawyers for Cues
Saturday, November 9, 2013

Shakespeare once wrote, “All the world’s a stage and all the men and women merely players; they have their exits and their entrances, and one man in his time plays many parts.” The idea holds true for the courtroom as well; everyone has a role to play, not simply the witness on the stand.

Experienced lawyers realize that jurors watch them to gain cues. Here are three observations.

First, lawyers should be aware of unintentional slights. For example, when giving documents to opposing counsel, be aware that abruptness can be perceived as hostility. Likewise, multi-tasking when the judge is talking can be perceived as rudeness.

Second, lawyers should not make facial gestures if a judge makes a lousy ruling or a witness gives an unexpected answer detrimental to the case. Doing so will cause a perceptive juror to think the case just fell apart.

Third, lawyers should err on the side of being too formal, rather than less formal. For example, when in doubt, ask the judge for permission. It may be asking to speak from somewhere other than behind a podium. It may be asking for permission to approach a witness. It may be asking to have an exhibit marked. The colloquy that will take place between a lawyer and a judge in these simple instances will create a perception that the lawyer has a command of courtroom etiquette.

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